By FAUSTINE KAPAMA-Judiciary
THE High Court, Main Registry, has
rejected the application by Lawyer Alexander Barunguza, seeking to halt the Law
School of Tanzania all on-going training sessions, pending determination of his
case he lodged to challenge poor results on two courses.
Judges Deo
Nangela, Ephery Kisanya and Theodora Mwenegoha ruled that the lawyer, the
petitioner, failed to sufficiently demonstrate all the requisite factors,
including existence of a prima facie case, balance of convenience and
irreparable loss, which would have convinced them to grant his prayer.
“(…….) looking
at the Petitioner's prayer for an injunctive order of this Court against the
(the Law School of Tanzania), we do not think that (he) has been able to
sufficiently demonstrate all the requisite factors which would have convinced
us to grant his prayer,” they said in their ruling delivered recently.
During hearing
of the matter, the Petitioner had told the Court that his prayer was based on
Rule 2 (3) of the Basic Rights and Duties Enforcement (Practice and Procedure)
Rules, 2014, GN. No. 304 of 2014.
He contended
that the kind of justice he was striving for is justice of all Tanzanians
including himself and that his prayer is premised on Article 27 of the
Constitution, on the ground that the Law School of Tanzania is in total misuse
of public funds amounting to 3bn/-annually in its budget.
In their view,
however, the judges pointed out that even on the basis of the said rule 2 (3),
they could not think that the granting a temporary injunctive relief as prayed
by the Petitioner would be warranted.
“We hold it to
be so because, evidentiary proof of the kind of wastefulness of public
resources alleged and how such is hindering or interfering with the
Petitioner's realization of his rights, should have been established. That has
not been established,” they said.
According to the
judges, ensuring that ends of justice are properly meted out is the noble
duty of the Court and that the provision relied upon by the Petitioner allows
the Court to invoke its inherent powers for the sake of ensuring ends of
justice and prevent abuse of its process.
However,
they said, the inherent powers of the Court could not be lightly invoked to
discharge such a noble duty based on bare words or be exercised on a vacuum but
rather upon solid considerations of evidentiary materials laid before the
Court.
The judges
pointed out that even if the Court was to act on them, the balance of
convenience would not have tilted in favour of the Petitioner.
They observed
that the granting of the prayer for temporary closure of all the programmes run
or administered by the Law School of Tanzania means paralysing its statutory
operations at the expense of the rights of other students as well.
“As such, it is
the (Law School of Tanzania which) will stand out to be greatly inconvenienced
if this Court was to grant the prayer. For the reasons stated herein above,
(…….) we decline the preliminary prayer for the issuance of a temporary
injunctive orders,” the judges ruled.
They also
rejected another prayer by the petitioner, seeking orders to allow the
proceedings of his case to be publicly broadcasted in a live-streaming mode
using various available technological media.
The judges
recognized the existence of an old principle which has always been, and,
remains to be, at the core of delivery of judicial services, which is the principle
of open justice, that justice should not only be done, but should manifestly
and undoubtedly be seen to be done.
However, they
said, since that principle has been given such a primacy in the administration
of justice, it is not left without operational guides or rules.
The judges
pointed out that without there being appropriate rules to govern the entire
aspects of live-streaming and recording of Court proceedings in the manner the
Petitioner would prefer, the whole thing cannot be undertaken at the moment,
even if he is ready to make it possible at his own initiatives.
“It is until
when such rules are put in place and promulgated, for use, therefore, that,
live-streaming and recording of Court proceedings will be made possible,” they
said, referring to other judicial jurisdictions.
There was
another issue the judges determined on whether they should continue hearing the
matter while there was an appeal pending before the Court of Appeal against the
refusal by the Court to grant the petitioner leave to apply for prerogative
orders against the decision of the Law School of Tanzania.
They pointed out
that an opportunity to appeal against a decision of the Court is a remedy
provided for to a litigant who is dissatisfied by such a decision and such
remedy has to be fully exhausted before he resorts to the remedies provided for
under the Basic Rights and Duties Enforcement Act.
“Subsection (2)
of section 8 of the Basic Rights and Duties Enforcement Act bars this Court
from exercising its jurisdiction if it is satisfied that adequate means of
redress are available to the person concerned under any other law,” the judges
said.
Under such
circumstances, the judges found the petition in question incompetent and had no
other option than to “struck it” out with no orders to costs.
The Petitioner
is a holder of Bachelor of Laws degree (LLB) which he obtained from University
of Tumaini- Makumira, Arusha. On November 20, 2019, he applied for and, was
admitted at the Law School of Tanzania for Practical Legal Training Programme.
Upon acceptance,
registration and payment of the requisite fees, the Petitioner commenced his
practical legal training programme as a 2019 December-Intake. Later, he sat for
his year 2020/2021 examinations, but failed two courses as per the results
released in April 2021.
Unsatisfied with
the results, the Petitioner filed an appeal alleging that the marking of his
two exam-answer scripts was unfairly done. Although the Petitioner preferred
such appeal, he, nevertheless, proceeded and sat for supplementary examinations
in May/June 2021 in respect of the two courses.
Having the appeal
been dismissed, the Petitioner was not satisfied by the manner and procedure
under which his appeal was heard. It was at that point in time when he decided
to take the matter to court for judicial scrutiny.
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